违约金的理论问题——以合同法第114条为中心的解释论

Some Theoretic Issues about the Penal Clause

惩罚性违约金可以适用于所有的违约类型 ,并不局限于迟延履行场合。依合同自由原则 ,当事人可以明确约定惩罚性违约金。就违约金责任的成立 ,应当区分类型具体分析是否要求违约人具有过错 ,且不应当以损害的存在及其大小的证明为要件。对于赔偿性违约金数额的调整 ,法院或仲裁机构行使裁量权时应有所节制。而对于惩罚性违约金 ,所要规制的只是其不公平的约定。

The paper re-thinks the so-called 'punitive penal clause' in Chinese legal theory, and points out that this kind of penal clause can be agreed upon for any kind of breach, not limited to the delay of performance. Although article 114 of PRC Contract Law 1999 is mainly on the compensative penal clauses, as a natural conclusion of freedom of contract, the parties of a contract are free to make an agreement on a punitive penal clause. In order to claim a penal clause, there is no need to prove the existence and amount of losses suffered by the plaintiff; as to the 'fault' of the breaching party to be proved or not, it depends on the different types of breaches of contract. As to the decided amount to be paid by the defendant for his breach, the court or arbitral organization should only have limited power, among which to the punitive penal clause, the only to be controlled is the unfair terms.